Brown: Letters to parole board don't toll AEDPA

In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate’s federal habeas petition challenging a denial of parole was time-barred by AEDPA’s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate’s letters to the parole board tolled the limitations period. The Court noted that Georgia has long provided that the sole means to attack a denial of parole was to file a writ of mandamus in state court, and Brown did not do this sufficiently early to avoid the one-year time-bar.

Snipes: No interlocutory appeal of venue

In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant’s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006). Venue claims are unlike cases involving the right not to be subjected to double jeopardy and similar rights which would be lost by going to trial.

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant’s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge. Without addressing whether this defense was valid generally, the Court noted that in Palma’s case the evidence that he entered a gun shop (with his then-girlfriend) twice, picked up the firearm, referred to it as "my gun," and requested, purchased and carried away ammunition for the firearm, did not support an "innocent transitory possession" instruction.

McBride: No Clear Error in 84-month sentence for child pornography distributor

In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence – below the 151-188 months guideline range – and a ten-year term of supervised release – below the Guideline recommended life term – for a defendant convicted of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).
The Court rejected the government’s claim that the sentence was substantively unreasonable. The Court noted that it would reverse a sentence only if left with the definite and firm conviction that a clear error occurred in weighing the § 3553(a) factors. The Court cited the length of the 84 month sentence, as well as the district court’s reliance on the defendant’s history of abuse as a child, as bases for affirming the sentence.

King: No Reasonable Expectation of Privacy in Shared Computer Files

In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government’s sentencing appeal, affirmed the district court’s ruling that King’s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years’ sentence.
The defendant’s computer flies at an army base were "shared" over the entire base network, and everyone on the network had access to all his files and could observe them. Thus, the search of his computer was akin to a search of the entire network. The contents of his computer were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public, and King therefore had no reasonable expectation of privacy in them.
Turning to the sentencing issue, the Court noted that the child pornography statute provides for a ten-year mandatory minimum if the defendant has a "prior conviction under this chapter." King’s convictions for possessing and for transporting child pornography were entered at the same time. The Court concluded therefore that the transporting conviction did not qualify as a "prior" conviction – distinguishing Deal v. U.S..

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.
The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case. Rejecting this argument, the Court analogized criminal contempt to sanctions under Rule 11 of the Federal Rules of Civil Procedure – which can be imposed regardless of whether a court lacks subject matter jurisdiction. Willy v. Coastal Corp., 503 U.S. 131 (1992). The Court distinguished contrary dicta in its caselaw as "inapposite."
The Court also concluded that the order that Straub was charged with violating was "reasonably specific," and further rejected Straub’s claim that his conduct was not "willful."

Dohan: No Improper Vouching

In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.
Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release. The Court noted that the issue involved the witness’ beliefs, and that the witness had been subject to vigorous cross-examination.
The Court also rejected the argument that the government improperly vouched for credibility of the witness’ credibility by suggesting that he had been "checked" by the prosecutor, and also by the judge earlier in reducing the witness’ sentence for giving substantial assistance. The Court found no error and no prejudice. The Court also found no error in the witness’ testimony that he was a "moral, Christian man."
Finally, the Court rejected the argument that the district court erred in giving a "specific intent" jury instruction, as provided in the Eleventh Circuit Model Jury Instructions, as being the mens rea of the laundering offense. The Court noted that its own caselaw no longer required specific intent, but mere knowing and voluntary participation in the conspiracy. The caselaw trumped the old Model Instruction.

Foley: Sentencing Court abdicated responsibility

In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.
The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes. The Court noted that forfeiture and loss are distinct, and require distinct calculations. Loss takes account of "relevant conduct." The sentencing court therefore "abdicated its responsibility" to make independent Guideline findings.
The Court also found that the district court erred, when calculating the number of victims, in relying on the number of persons who had responded to a probation office questionnaire. The Court noted that these responses did not "establish how many people sustained the loss."
The Court further found that the district court erred when it abdicated its responsibility to determine whether the defendant obstructed justice.
The Court noted that these cumulative errors were not harmless, since they resulted in a sentence 250 months below the bottom of the otherwise potentially applicable Guidelines range – a factor the district court must still consider.
The Court rejected all of Foley’s arguments on cross-appeal. The Court noted that the restitution statute now defined a "victim" more broadly than before, therefore making Foley liable to "any victim" of his fraud scheme. The Court rejected all of Foley’s remaining arguments as meritless.

Hurtado: Misuse of Identification Does not require theft

In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person’s identification, in violation of 18 U.S.C. § 1028A(a)(1).
The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove. The Court explained that the statute criminalizes use of identification "without lawful authority," and this definition encompasses situations other than theft of the identification. The Court further explained that knowledge of that there is an actual person is not an element of the offense, because this is not required to avoid convicting the defendant of non-culpable conduct.

Drury: Denial of rehearing not AEDPA limitations start point

In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA’s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari. The Court joined other circuits to have so held, and noted that under the Supreme Court rules, a motion to rehear the denial of certiorari does not suspend the order of denial.

Davis v. Jones: Appearance of Impartiality not required by due process

In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State’s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process.
The Court noted that, under Supreme Court caselaw, only actual bias, not the appearance of bias, rises to a Due Process violation. Although the federal recusal rules would have required recusal in these circumstances, Due Process did not so require. Hence, the Alabama proceedings did not violate Due Process.

Jackson: Physical evidence resulting from un-Mirandized statement

In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.
The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement. Citing the narrowest grounds for the decision in United States v. Patane, 542 U.S. 630 (2004), the Court held that a Miranda violation that produces a voluntary statement does not entail suppression of the physical evidence found as a result of the un-Mirandized statement.

Mintmire: Lawyer Obstruction Conviction Upheld

In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.
The Court rejected a challenge to the sufficiency of the evidence. The Court found ample evidence that Mintmire had attempted to coach a witness to give false testimony before the grand jury.
The Court also rejected a challenge to the jury instructions, finding that the trial court properly instructed the jury on the affirmative defense that Mintmire was acting as a lawyer and giving bona fide legal representation at the time he committed the charged conduct.
Finally, the Court found no prejudicial spillover in the fact that Mintmire was prosecuted in a single trial for two separate obstruction counts.

Mangaroo: Probation Plain Error for 924(c) sentence

In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies.
The Court noted that at the conclusion of sentencing, the government only made generalized objections, such as "the government objects to the sentence." This did not suffice to preserve for appeal the error in the sentences, namely the fact that the district court imposed sentences of probation when the statute for the offense of conviction, 18 U.S.C. § 924(c), expressly excludes probation as a sentencing option. However, because this error was plain from the language of the statute, the error constituted "plain error," and grounds, therefore, for vacating the sentences.
The Court pointed out that at the original sentencing, the district court did not cite any assistance-related factors to justify its downward departures. The Court agreed with the government that, at resentencing, the downward departures based on the defendants’ cooperation must be limited to the nature of the "substantial assistance" they provided.

Moore: Rule 29 Motion in VA theft

In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf

Robison: CWA Convictions Reversed

In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.

Brown: Union officials convictions upheld

In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members.
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There’s no need of sending any notes that you can’t agree, because you are going to stay here for a long time." Citing Jenkins v. United States, 380 U.S. 445 (1965), the Court held that the instructions were "impermissibly coercive."
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.

Delancy: Consensual search not fruit of poisonous tree

In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."

Khanani: "Proceeds" are not proceeds of the labor

In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court’s entry of a judgment of acquittal on the money laundering counts. The case arose out of the defendant’s employment of illegal aliens in their jeans retail stores.
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf